Is Now the Right Time for Immigration Reform? Chuck Schumer, the Sensenbrenner in Liberal's Clothes

"All illegal aliens present in the United States on the date of enactment of our bill must quickly register their presence with the United States Government -- and submit to a rigorous process of converting to legal status and earning a path to citizenship -- or face imminent deportation."

Has the dreaded Wisconsin Republican congressman James Sensenbrenner come alive again? Are we back to 2005, when Sensenbrenner pushed for undocumented aliens to be declared felons, ineligible to ever normalize their status in the U.S.?

No, this is one of the major principles advocated by New York Democratic Senator Charles Schumer, who is leading the charge toward "comprehensive immigration reform" this year, in what couldn't possibly be a worse climate to enact such policy changes. Already, before the debate has started in Congress, Schumer has conceded much of what the extreme right wing wants, and negotiations are likely to make the outcome considerably worse than the failed 2006 and 2007 legislation, which fizzled due to pressure from the Republicans' own nativist wing.

Schumer has decided that the way to get "bipartisan" (i.e., bare minimum) support is to take a harder line than the doomed 2006 and 2007 legislation, which was brutally harsh to begin with. Schumer wants to up the ante, to try the please the anti-immigrant crowd. His declaration that the term "undocumented workers" should be abandoned in favor of "illegal aliens" reflects more than a shift in semantics. It gets us back to the Sensenbrenner strategy of dealing with immigration by enacting a draconian paper edict, to disappear the unwanted. It always seemed, with the onset of the Bush years, that a paper solution -- making nonpersons of persons -- would be the preferred approach, instead of dealing with the reality of human lives, each of which is different, depending on connections with the community, and records that have little to do with abstract law-and-order reasoning. The Schumer/Sensenbrenner mandate for the undocumented, even if they don't think they will qualify, to register within a short period of time or else be permanently barred from becoming U.S. residents, is a prime example of the law run amok.

Under the 2006 and 2007 proposals, despite loud denunciations of "amnesty" from opponents, few undocumented immigrants would actually have qualified for residency. The requirements were too tough. The punitive approach would have left out many longtime residents, who didn't have regular employment in the preceding several years, or were disabled or unable to work, or were dependent on the workers in their families, or had any kind of a history of document abuse (something which, by definition, affects the undocumented, and which the 1986 Reagan reform was careful to address in humane terms). As the proposal is shaping up now in Congress, the idea would be to exclude as many residents and their dependents as possible, rather than to include as many as possible. The mean spirit of the Bush years toward immigrants fundamentally lives on whenever Schumer speaks of the issue these days.

Immigration is "broken" in the same way that Social Security is broken; neither system is in imminent danger of collapse, but right-wing extremists have made it sound as though the borders have fallen, just as they claim that Social Security is on the verge of going bankrupt. Neither claim is remotely true. What is needed in both cases is to preserve the best of our tradition, and adopt minor fixes to smooth the transition to the demographic future that beckons.

Violation creeps into the immigration system when too few visas are available to too few people. The fact that a large number of people have chosen to live out of status in this country means that the system is too slow, inefficient, hampered by old edicts, and constrained by bureaucratic lapses to allow genuine labor, family, and political needs to be met. The fix needed is to speed up the process of qualifying and approving new immigrants. In certain cases -- such as granting residency to immigrants who complete higher education in the U.S. -- the immigration system needs to be become vastly more accommodative and expansive, rather than restrictive.

Trying to reform immigration now, less than a year after the xenophobes in charge of Washington have been booted out, and while the racist rhetoric of Lou Dobbs and Rush Limbaugh hasn't yet cooled down, is like trying to find a permanent fix to the "marriage crisis" by adopting some sort of comprehensive marriage legislation at the height of the gay marriage scare. Both are false wedge issues, designed to heat up the electorate. Prior to the 2006 and 2007 proposals, granting residency to those with established roots in this country used to be the reigning philosophy, but it is not something Schumer wants anything to do with. Rahm Emanuel's instinct was always to shelve this issue until later, perhaps until a possible second Obama administration (Joe Biden agrees). Schumer, unfortunately, won the argument on timing.

Earlier in the decade, in 2004 Senator Tom Daschle, along with Senator Chuck Hagel, proposed a sensible bill legalizing those who had earned it by having lived in the U.S. for five years. During the fiery 2006-2007 immigration debates, Senator Jim Webb offered a rational proposal to establish four years as the period of time presumed sufficient for an immigrant to have laid down roots in the community (

These proposals presumed that the immigrant, by having been present a substantial period of time in the U.S. (about four to five years) and having demonstrated his moral character, had already "earned" legalization. But now the idea of "earned" has been turned on its head; the new punitive approach would make even residents of 10, 20, or 30 years' standing begin all over again, as if they had just arrived and had no roots worth speaking of. They would be treated, in every respect, far worse than anyone without a day of presence on U.S. soil. Such an approach has never been part of our traditional approach to immigration. Presence in the U.S. -- even if for technical reasons one might be out of status -- should bring undoubted advantages in the eyes of the law. This seems to mean nothing for Schumer, as it didn't in the 2006 and 2007 proposals.

The immigrant present in the U.S. for a significant time is supposed to jump through ropes not designed for new arrivals; he is to be put through a series of Catch-22 situations, which can only mean exclusion, if the principles are executed to the last detail. Republican Senators Sessions, Cornyn, Kyl, and other hard-liners will ensure that when the final product emerges, enough restrictions will be added that very few will actually qualify. Paradoxically, in fact, the trend in all the proposals since 2005 is to establish bias against longtime presence, since by definition someone who has been here long enough has had more opportunity to violate technicalities than someone who has freshly arrived.

The best recent philosophical argument for taking time elapsed into primary consideration when deciding the fate of undocumented immigrants is Joseph H. Carens's "The Case for Amnesty: Time Erodes the State's Right to Deport," published in The Boston Review. But the Sensenbrenner/Schumer reasoning utterly ignores this dimension in favor of abstract principles that have little to do with the realities of immigrants' lives. Spouses, children, roots in the community, ability to contribute to the U.S.'s welfare in small or large ways, record of accomplishment, moral character, inability to live elsewhere than the U.S., none of these are part of the Sensenbrenner/Schumer criminalization calculus (Either register within x amount of time, or you are automatically deportable). The only imperative is to bend over backwards to satisfy the xenophobes that the state has not somehow granted "amnesty to illegal aliens." The way the immigration legislation is shaping up, it would be a prime instance of the law causing more harm than good, as it goes out in search of policy monsters to destroy that don't exist in the first place (see here).

In all the major dimensions of policy, the Obama administration has failed to follow up on its greatest publicized strength: the capacity to formulate consensus based on rational consideration of the facts. In practice, it has always preferred the labyrinthine, secretive, top-down, arcane, overly complex, lobbyist-favored solution over the straightforward, sensible, elegant, apparent one. This applied to the administration's early response to the financial crisis and the torture regime, has carried forward into health care and energy, and now threatens immigration. As Kevin Baker points out in his current Harper's article, "Barack Hoover Obama: The Best and the Brightest Blow It Again," this penchant to go for the abstruse fix, in place of the plain one that stares in the face, has a good chance of dooming the Obama presidency, despite the president's undoubtedly sharp awareness of the issues at stake.

Far be it from me to accuse Schumer of being part of "the best and the brightest" (even in the pejorative sense the term is generally used), but these are the Machiavellians who bring blight on liberal administrations' declared ambitions to be more compassionate than their heartless predecessors. In every major respect, the Obama administration has chosen to retain and carry forward as much as possible of the repressive apparatus established by the Bush administration, tinkering at the edges, making minor adjustments, and leaving the basic architecture of surveillance, punishment, injustice, and exclusion in place. The solution to the economic crisis was to redress inequality, to the health care crisis a single-payer system (or as close to it as manageable), to energy a carbon tax, and to immigration inclusion (call it amnesty). The torture/detention regime is another instance of the failure to go for the obvious. Instead of unequivocally shutting it down, the Obama administration's instinct has been to try to accommodate both sides of the question, claiming greater complexity than actually exists (declaring that things are more complicated than anyone thought possible makes the bureaucrat/politician sound reflective, but it may be no more than cover for cowardice). The administration's favored solution seems to be a new national security court, which would bypass established criminal procedure, under cover of a "thoughtful" new system.

What the Obama administration should have done -- besides letting immigration reform wait until a possible second term -- was to shift the grounds of the debate away from the xenophobic rants of Lou Dobbs and the terrorist phobias of John Ashcroft and Alberto Gonzalez. This would have been Obama's greatest favor to the immigrant community. Instead, such an attempt was never really made. Vague assurances went out at the very early stages, and the establishment of the immigration policy group was an early hopeful sign, but slowly the punitive regime is returning. Overwhelming majorities of Americans have always favored -- even during the darkest days of immigrant-phobia in the Bush years -- legalization of those with roots in the community. The Obama administration has not done anything to build on the favorable public judgment, in order to bypass the obstructionists in Congress.

In the case of immigration, a bipartisan commission (of experts, not politicians), which would have helpfully pushed things down the road until a calmer moment, would have been a good start. More importantly, leading members of the administration ought to have taken as much time as possible to point out that immigration cannot be reduced to sick, perverted, rapacious Mexicans in tattered clothes jumping over our walls, but that for the last 40 years, the one thing that has elevated the United States over its European and other competitors is its relative openness to immigrants, resulting in an enormous boost in innovation and productivity. This is already under severe erosion, as fewer and fewer of the real "best and brightest" choose to study in the U.S., or return home once they finish studying, leading to a reverse brain drain. Undocumented immigrants were often building homes during the housing boom, for which established immigrants were some of the most enthusiastic buyers. In our passion to control and exclude, we have already caused great, perhaps irreversible, damage to the US. economy.

Of course, Schumer would respond by saying that to put it off would be to abdicate legislative responsibility, and that the proliferating patchwork of laws at the state and local levels points to the imperative need to enact legislation now. He would further point to his proposals as being in the best compassionate spirit, alleviating tragedy at the border, the breakup of families, and the unmet needs of American business. But anything that moves away from the already earned right of longtime residents to make a prior claim on legalization is bound to make things worse, by sowing the seeds of chaos, and leading to more disturbance, breakup, and labor instability than is the case now, even with the flawed, inefficient, slow system. Anything that reduces immigration to sheer economic calculus, not allowing for the complexity of lives, is a step backward even from the existing difficulties.

If Schumer were offering the older Daschle-Hagel reform, things might have had a chance of getting better, but as it stands now, and as it is likely to develop, all signs point in the direction of greater ruthlessness and unfairness being allowed into the system. Paltry tokens like the Dream Act -- again, this shouldn't be presented as a huge favor to immigrants who have only known the U.S. as a home, and whose only crime was to have been brought over by their parents at a young age -- will not compensate for building ruthless exclusion into the system.

Consider all of Schumer's statements (in light of the fact that he is Obama's lead person on immigration now), and ask yourself: Does he sound like he thinks immigration is a great thing for the U.S.? Does he take issue with the ghastly rhetoric of the Bush years, which held that those with the greatest moral right on immigration benefits had the least right to it? Does he emphasize innovation, creativity, and productivity, building on the best of our traditions, or does he beat to death the law-and-order aspect of Lou Dobbs's "broken borders"? Does he sound like someone the Ted Kennedy of 1965, or even 2005, would appreciate as having stepped into his large shoes, or someone Kennedy would be embarrassed by? Does he make an attempt to fundamentally shift the debate from the punitive and racist tone it has taken, or does he accept the premises of the last eight years as given? Does he try to be too smart by half, as he threads impossible needles, pleasing Sessions as much as labor, NumbersUSA as much as LULAC? Does he grandstand (always the case with backroom bargains) or does he come across as someone with sympathy for individual immigrant lives--not necessarily the abstract propositions of corporate needs? (See Schumer's Principle 7 in his June 24 statement.) Is he enamored of Rumsfeldian principles of total information awareness, and the fantasy of demographic control through biometric identification that seems to have taken permanent hold of the Washington bureaucrat's imagination? (The problem of false matches with E-Verify, the latest incarnation of the magic card solution to human problems of desire, mobility, and integration, is not trivial, and it necessarily suffers from mission creep, extending into more and more realms of data mining, though Schumer has made it a centrepoint of his hard-line self-presentation.)

This is what an approach to humane immigration reform looks like. Measure Schumer's actions in the coming months with reference to his distance from this document, written by Peter Schey of the Center for Human Rights and Constitutional Law.

Schumer's first principle reads: "Illegal immigration is wrong, and a primary goal of comprehensive immigration reform must be to dramatically curtail future illegal immigration." One can imagine a different first principle. "Immigration has always been behind the great success story of the U.S. as the world's leading economic and cultural innovator, and we must bring our bureaucracy in line to minimize the friction faced by new Americans as they become wholehearted contributors to the greatness of our open system."

Pro-immigrant advocacy groups also bear a huge share of the blame for the unfortunate timing. LULAC, La Raza, etc., instead of lowering the rhetoric after the election, chose to continue putting pressure on the administration to enact comprehensive legislation now. This was a great mistake. The prevailing climate needed to shift before the timing could be right. The emphasis should have been more on putting an end to sensationalist Bush-era raids that often swept in the innocent. Behind the scenes, more pressure could have been applied on Homeland Security to move away from some of its blatant examples of immigrant abuse. Steps could have been taken to forge a lasting agreement with organized labor toward a return to the 35 years of openness which ended in 2001. Instead, the rallying cry of "comprehensive immigration reform," familiar from 2006 and 2007, went up, as though immigrants needed to confront new legal complexities at this particular time, instead of being allowed to get on with their lives, fix problems in a low-profile manner, and wait for a more opportune climate for humane legislation.

Meanwhile Schumer, cutting insider deals with the likes of Jeff (Ku Klux Klan) Sessions, barrels forward to gift the nation with a "comprehensive immigration reform" package by Labor Day. A colossal, uncontainable crisis of immigration is at hand, and there couldn't be a more opportune time to tackle the issue than right now. A grateful nation will realize that the underlying economic rot was only a distraction, and that it is the flood of illegal wall-jumpers and suitcase-bomb terrorists and diseased aliens we need to worry about and catch and imprison and deport in order for us to regain our lost sense of security. Even while getting all he wants -- whether or not the legislation finally passes -- Sessions will decry yet another ham-fisted attempt of the "masters of the universe" to cram their social engineering brilliance down our throats. And he will be right, because though Schumer might not be one of the best and brightest, he is almost certainly a bona fide "master of the universe."

One can only imagine what Rahm Emanuel has had to stuff in his mouth to restrain himself against the imminent folly.